Over forty years ago, on October 20, 1973, embattled President Richard Nixon responded to a subpoena for information by his own Special Prosecutor Archibald Cox by refusing to comply with the order. He then fired Cox, and accepted the “in protest” resignations of his Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus, in what became known as the Saturday Night Massacre.
Nixon’s decision galvanized popular opinion against his use of political power during the Watergate affair. However, because he resigned and was pardoned before he could be tried in a court of impeachment, the American judicial system never addressed and resolved the following question: could a United States President legally avoid complying with his own official’s oversight orders by firing that very official?
A similar question about business corporations is now being adjudicated by the American legal system. Last October, Apple agreed to settle a governmental anti trust case about its e-book pricing practices by accepting a court appointed compliance monitor.
But Michael Bromwich, the compliance officer, has ruffled the feathers of Apple’s executive officers, who accuse him of conducting “adversarial, inquisitorial, and prosecutorial communications and activities.” Recently, the firm won an administrative stay from Bromwich’s oversight, pending further appeals.
But let’s consider Apple’s legal stance for a moment. Adversarial, inquisitorial, and prosecutorial activities? Isn’t that the type of behavior that should be expected from a court appointed compliance monitor?
Nevertheless, Apple believes that such behavior is inappropriate; it is attempting to dismiss its own compliance monitor. Forty years after Watergate, the courts may finally have an opportunity to opine on the legality of such actions.
If you were hearing this case as a member of the judiciary, would you rule in favor of Apple?